Ricci v. Stefano: What an awful mess

Since anyone who is reading this entry has an interest in the case, I assume you all know where to get the opinion by now, but if not, here you go: http://www.supremecourtus.gov/... Quick Summary (I will not recite the facts in full, since no member of the Court felt any substantial need to explore any facts that did not favor his or her own opinion): The city of New Haven, Connecticut administered firefighter officers' exams in which very few minority candidates finished in the upper echelon. Rather than risk being sued for "disparate impact" discrimination by those minority candidates who did not qualify, the City tossed out the results and promoted no one. Nevertheless, the firefighters who did the best on the exam sued, asking that the federal courts require the City to accept the test results and give them promotions. The City won at the district court and the Second Circuit. Today the Supreme Court reversed and ruled that the plaintiffs win as a matter of law. You can look through the opinions all you want, but here is my very quick summary: -- Justice Kennedy does not believe that the City could establish (and failed to establish as a matter of law) that the exam used was defective, so the City had no choice but to accept the test results (since to reject the valid test results would be to discriminate against the high-scoring firefighters based upon their race). The amazing thing about this opinion is that Kennedy basically creates an entirely new test for cities to use in this situation, calls it something like the "strong basis in evidence" test, and then decides as a matter of law that the city cannot establish that it had a "strong basis in evidence" to suspect the test.....even though the city had no way of knowing that this was the legal standard to be applied and even though the city had presented some evidence on the matter in its favor. The proper thing to do, if you are Justice Kennedy, is to announce a rule of law and send the matter back for a factual determination on this issue. Instead, the city gets nailed for not proving to five judges' satisfaction that it provided enough evidence to avoid summary judgment granted by using a legal standard that never actually existed in the case. -- Justice Scalia is upset that Title VII was ever passed in the first place and he would find the entire thing unconstitutional if he had half a chance. This opinion shows how very hard-core neo-con Scalia is. He basically calls into question Congress's ability under Title VII to pass legislation prohibiting "disparate impact" discrimination (despite settled law for, oh, 38 years). -- Justice Alito thinks that the City caved into a poor man's Connecticut version of Al Sharpton, so he isn't going to put up with that. This, of course, is delving into the facts of the case and determining exactly why it is that YOU as an appeals court judge believe that something was done by one party or the other. This is absolutely the worst kind of judicial activism. It is your job 99.99% of the time to just say, "The trial court found the facts to be.......and we must accept these facts as not clearly erroneous...." You do NOT say, "Well, I looked at it and it seems like this rabble rouser guy was the whole deal, so yeah, I don't agree." That, to use a non-legal term, is bullshit. and -- Justice Ginsburg believes that all written firefighter exams discriminate against minorities, so she would have allowed the city to win. Ginsburg's dissent has three basic problems: 1. She starts it by saying that she has sympathy for the folks who scored best but were not promoted. Bullshit. She has no sympathy for these people. She believes that they benefited from a flawed test and are not entitled to their positions. Don't lie. Don't claim that you have sympathy for people who played by the rules, did the best and didn't get in. You do not. You feel that they got picked for a bad/illegal reason. Basically you think a starting 9 on a baseball club was picked based upon their knowledge of the rules of the game and not on whether they can play. So don't pretend you are sympathetic. You are not. 2. She says she agrees that if a city "repeatedly" threw out test results that did not feature minority winners that the city might be liable. Um, why? If it is proper for a city to say one time, "Uh, oh. Shit, we are going to get sued for these results" then why isn't it OK for the city to say it 2 or 3 or 4 times? Do you get one free bite at discrimination against white folk? 3. Let me mention it, since no Justice seems to want to mention it in their opinions. Examine the opposite result: -- the city of Sante Fe, New Mexico has a Captain's exam and 98% of the winners are black and Hispanic and 2% are white. The white population gets all mad and threatens the mayor with no more money for his campaign or his city, and the poor-scoring white guys threaten legal action. Sante Fe throws out the results so the white guys can try again. Oh.....my.....God......end of the world, right? You are going to toss out an exam because the white guys didn't do well enough? Al Sharpton better love Tex-Mex food because he is going to be in Sante Fe forever. Let's be frank. This decision just makes matters worse as a practical matter. Let's assume that Shreveport, Lousiana decides tomorrow that it is going to change its firefighter exam so that the same exam is used that is used in New Haven, Connecticut. (And if you wanted to favor white firefighters why wouldn't you? The SCOTUS has just decided that the exam is perfectly legal and fine. And you know from experience that minorities do worse on the exam.) So, the exam results come in and 95% of the top exam finishers are white. Result under today's decision -- City has to promote the white guys. OK -- but they put the exam in place just for the pure purpose of getting more whites promoted, right? Or was it because they knew the test was constitutionally approved? Reason 1 is not legal; I assume reason #2 is.......or is it? We know that desire to avoid lawsuits is not a permissible ground for changing your test. We learned that today. THE MESS -- Here is the practical mess. The SCOTUS has made it harder for cities to avoid legal actions. If you use what you think may or may not be a discriminatory hiring or promotions test, you have a legal obligation to the high scorers to defend it to the end of time. So now every single time that a city has an exam where the racial result is skewed (pro-white or anti-white) the city will be sued. There is nothing the city can do to avoid it. If a result is skewed, you have a constitutional obligation to defend it. But when you defend the result, you will almost certainly be sued for disparate impact discrimination and you will not be able to win a motion to dismiss because there will be prima facie evidence of disparate impact. Then you will have 2 years of discovery on whether the city had or did not have a "strong basis in evidence" that its test was discriminatory or that there was a better test out there. Congratulations city taxpayers, you get to fund endless defense of civil suits!! What the 5-4 decision does (as Ginsburg correctly notes) is make it impossible for a City to avoid litigation risk. The city is damned if it does and damned if it doesn't.